does a lawyer have a place in mediation? an interview with Timothy L. Horgan, attorney

What is the role of a lawyer during the divorce mediation process?

As a matrimonial attorney, clients consult me while pursuing mediation typically in the context of wanting to make informed decisions. Particularly in a complex case, a client may find the amount of information offered by the mediator daunting, or may wish to better understand the refinements of a particular issue. Accordingly, I am retained as a kind of sounding board. The client attends the mediation session and then discusses with me what he or she has learned, how it impacts his or her personal case, and what other issues may flow from that particular topic. Having the client feel more comfortable and informed can enhance the future mediation sessions.

At what point in time do you intervene in the process?

The client should advise the mediator and spouse that he or she is also working with a lawyer. Most divorce mediators recommend to their clients that they get advice during the mediation process if needed, and certainly before signing any documents. The relationship should be transparent. Although it may at times seem counterintuitive to a divorcing couple, the mediation process works best where trust is displayed by all concerned. Having an attorney behind the scenes smacks of gamesmanship and can backfire.

Do you help both parties or just one?

If a lawyer is desired, the lawyer should only advise one of the participants as the mediator is the one in a sense representing both parties. With respect to when the attorney should enter the process, I would think at the outset or when the client encounters a difficult issue that he or she wants more information/guidance on.

3 Comments

Very true Jennifer. Some clients go to attorneys before or during the mediation process. Others at the end for review. Their needs are different. Consulting attorneys can often help not hurt. I have a list of great attorneys I highly recommend. When we work together, the client benefits. Keep writing your blogs, Don

This is a lovely blog – very thoughtful, and informative.
Sometimes people use Consulting Attorneys, if they have questions before they begin or as they go along in the mediation process. If they do not, I think it is really important to have an attorney who is familiar with family law in your state review your agreement before you sign it. That way, you will be sure that you understand how your specific agreement may differ from what the law says. The mediator cannot represent either of you. That said, it is important to find a Review (or Consulting) Attorney who is familiar with mediation and is mediation-friendly, so they will support your participation in the process. That is the best of both worlds!

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“I wanted to thank you for being such a help in this situation. It might not seem like you’ve done much but just having you there in the room changed everything – really. I do understand that its not your job to take sides and that its important for you to remain impartial. I do wish it were possible to show you, though, how radically different that conversation was just because you were there listening.”– MB.

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Satisfaction For You Both

In mediation, you can be as creative as you wish to be. Only you know the specifics of your lives, what works for you and what does not. As your mediator, I’m there to help you “think outside of the box”, if necessary, sometimes coming up with non traditional answers, but answers that will satisfy not only your financial needs but your emotional needs as well.